Byron L. DORGAN, Tax Commissioner, State of North Dakota, Petitioner and Appellee, v. Albert W. KOUBA, Respondent and Appellant.
Civ. No. 9493.
Supreme Court of North Dakota.
Nov. 28, 1978.
Rehearing Denied Feb. 1, 1979.
274 N.W.2d 167
PEDERSON, Justice.
Albert W. Kouba, pro se.
PEDERSON, Justice.
The district court granted the tax commissioner’s petition for a writ of mandamus (
In each of the years 1974, 1975 and 1976, Kouba filed the prescribed individual income tax Form 37. On the form he supplied the following information: his name and his wife’s name, his home address and zip code, the amount of state income tax withheld, and the amount claimed as refund. Thereafter, the response to every item of information required on the form was “Object.” Kouba thus objected to supplying his telephone number, whether he was single, whether he was a resident, iden-
He attached to Form 37 a copy of his wife’s wage and tax statement (federal tax Form W-2), and a copy of federal Form 1040. Form 1040 also contained the response of “object” to every item of information upon which computation of tax liability could be based, except that the amount withheld and claimed as refund was the amount of federal income tax withheld. Also attached were affidavits, letters, memoranda, newspaper clippings, the Declaration of Independence, portions of the Constitution of the United States, and briefs of legal questions, all of which purportedly relate to or explain Kouba’s objection to supplying information upon which his tax liability can be ascertained under the income tax law of North Dakota.
Kouba, who has represented himself throughout this entire proceeding, attempts to raise the following issues:
(1) That
(2) That he has complied with the statutes requiring that a tax return be filed with the tax commissioner (
(3) That he asserted on Form 37 a valid Fifth Amendment privilege and that he is prevented from claiming this privilege by the writ of mandamus.
The threshold question is whether
“1. Every resident individual, every fiduciary for a resident individual, estate or trust, and every individual or fiduciary who receives income derived from sources in this state, who is required by the provisions of the United States Internal Revenue Code of 1954, as amended, to file a federal income tax return, shall file an income tax return with the state tax commissioner in such form as he may prescribe.”
In State v. Nichols, 66 N.D. 355, 265 N.W. 859 (N.D.1935), our court held that the state income tax statutes do not violate the equal protection and the due process clauses of the federal and North Dakota constitutions. In upholding the inherent power of the legislature to enact tax laws, we said:
“The legislature must determine all questions of state necessity, discretion or policy involved in ordering a tax and in apportioning it; must make all the necessary rules and regulations which are to be observed in order to produce the desired returns, . . .” State v. Nichols, 265 N.W. at 863, supra, citing 1 Cooley on Taxation (4th Ed.).
A statute is conclusively presumed to be constitutional unless it is clearly shown that the statute contravenes the state or federal constitution. Souris River Telephone Mutual Aid Corp. v. State, 162 N.W.2d 685, 688 (N.D.1968). Kouba has not presented us with a sufficient reason for reconsidering our holding in Nichols, supra, and invalidating acts of the legislature which are presumptively enacted for the general welfare of the citizens of this state.
A jury trial is not mandatory under our constitution in an action to compel the filing of a tax return.
Kouba asserts that he filed a return in 1974, 1975 and 1976 and therefore the writ of mandamus was improperly issued by the district court. We do not agree.
“If the tax commissioner shall be of the opinion that any taxpayer has failed to file a return, or to include in a return filed, either intentionally or through error, items of taxable income, he may require from such taxpayer a return, or supplementary return, under oath, in such form as he shall prescribe, of all the items of income which the taxpayer received during the year for which the return is made, whether or not taxable under the provisions of this chapter.”1
To permit a taxpayer to file a tax form upon which tax liability cannot be ascertained would frustrate the purpose of the statute. Filing a tax form is not synonymous with filing a tax return. A “return” is a tax form containing sufficient information from which the commissioner can determine tax liability. See United States v. Porth, 426 F.2d 519, 523 (10th Cir. 1970). The district court properly issued the writ of mandamus.
Kouba next contends that filing a return “could possibly” deprive him of his privilege against self-incrimination under the
The
Three questions must be considered before determining that a witness has invalidly exercised the privilege:
(1) Who decides whether a response would be incriminatory?
(2) By what standard is the question to be determined?
(3) Who bears the burden of making a factual record to show whether there has been a valid assertion of the privilege? See McCormick on Evidence, § 139 (2d Ed. 1972).
It is within the province of the court to determine whether or not a question may compel the witness to disclose incriminatory evidence. Hoffman v. United States, 341 U.S. 479, 486 (1951).
The standard upon which a valid assertion of the privilege is determined is whether the danger of incrimination is “real and appreciable.”2 Marchetti v. United States, 390 U.S. 39, 48 (1968); In re Atterbury, 316 F.2d 106, 108 (6 Cir. 1963). It must appear that the answer may disclose a “necessary and essential link” in the chain of testimony, sufficient to prosecute the taxpayer of a crime. United States v. Burr, supra.
“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. at 486, supra.
The claim must be allowed unless it is “‘perfectly clear . . . that the witness is mistaken, and the answer[s] cannot possibly have such tendency’ to incriminate.” Hoffman v. United States, 341 U.S. at 488, supra, citing Temple v. Commonwealth, 75 Va. 892, 898 (1881).
It is the response to the third question which poses a dilemma for a taxpayer. All of the questions on the tax form appear to be innocuous. Income tax returns are “neutral on their face and directed at the public at large.” Garner v. United States, 424 U.S. at 660, supra, citing Albertson v. SACB, 382 U.S. 70, 79 (1965). Questions relating to the location of a taxpayer’s school district, whether he filed a joint or individual return, his marital status, and his telephone number are not per se incriminatory. After having considered the setting in which the questions on the tax form were asked, and the implications of these questions, we have no reason to believe that the remainder of the questions pose a danger of incrimination to Albert W. Kouba.3
The requirement of limited disclosure may present a “catch-22” situation for some taxpayers. He must make some showing that he will be incriminated in order to apprise the court of the circumstances upon which the privilege is based. If he asserts too much, however, the privilege is destroyed. Although we find no reason to sustain Kouba’s position under the standards enunciated by this court and by the federal courts, we acknowledge that each case must be evaluated on its own merits. The United States Supreme Court has not, apparently, been afforded the opportunity to directly consider this question.
We hold that Kouba’s assertion of his Fifth Amendment privilege is invalid. The possibility that agencies other than the tax department will obtain from Kouba’s return information that will convict him of a crime is not a “real and appreciable” danger mandating Fifth Amendment protection. An unfounded suspicion that tax information may possibly provide a “link in
Kouba states that had he been allowed to discuss
“No State shall . . . make any Thing but gold and silver Coin a Tender in Payment of Debts; . . .”
We are not aware of any limitation of Kouba’s right to present his case fully. We have considered all of the material which he has submitted. The trial court imposed no limitation upon his presentation. We are not convinced that the state tax department violates
“Obviously, petitioner is opposed to the Government using tax proceeds to promote the economic welfare of other citizens. This seems to be his chief complaint. A taxpayer cannot, however, evade payment of his legal tax obligations on the basis of his dissatisfaction with the distribution of revenue. Congress alone is authorized to appropriate money to promote the general welfare and its determination within constitutional bounds is decisive. It is the function of the courts to interpret the statutes so as to promote and effectuate the disclosed intent of Congress.” Crowe v. C.I.R., 396 F.2d 766, 767 (8th Cir. 1968).
We see no basis for this court to overrule the holdings of the above two cases.
The comprehensive material which Kouba attached to his income tax form raises objections to the federal reserve system, to government expenditures for abortions and other programs, to IRS internal procedures, and to the United States foreign aid programs. Objections to the programs for which taxes are being spent are more properly directed to Congress and the legislature through political channels.
We hold that North Dakota income tax laws are constitutional and that Kouba did not assert a valid Fifth Amendment privilege. We affirm the issuance of the writ of mandamus by the district court, directing Kouba to prepare and to file a complete return from which his tax liability can be ascertained.
ERICKSTAD, C. J., and PAULSON, SAND and VANDE WALLE, JJ., concur.
PEDERSON, Justice, on petition for rehearing.
In his petition for rehearing Kouba asserts that he is entitled to a jury trial in the mandamus proceeding held to determine whether he filed a complete tax return, within the meaning of
“Any party may demand a trial by jury of any issue triable of right by jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.”
A party waives a jury trial if he does not make a timely demand. Rule 38(e), N.D.R.Civ.P.
Kouba demanded a jury trial in his Affidavit in Support of Motion to Dismiss. His demand for a jury trial was timely made in response to the tax department’s petition for writ of mandamus.1
Kouba asserts that the citizen is guaranteed a jury trial in all tax matters. In support of this assertion, Kouba relies upon United States v. Anderson, 584 F.2d 369 (10th Cir. 1978), a case which had not been published when our opinion was prepared. That case involved the question whether the Seventh Amendment preserves a jury trial in an action brought by the government for the collection of revenue.2 In Anderson the Tenth Circuit Court of Appeals noted that:
“Study of the history of the Court of Exchequer shows that, under the common law of England in 1791, an action by the Crown to recover a judgment for taxes was a suit at common law in which the right of jury trial existed . . .” United States v. Anderson, 584 F.2d at 373, supra, citing Damsky v. Zavatt, 289 F.2d 46 (2d Cir. 1961).
In Anderson, the court held that because an action to collect taxes was an action for debt at common law, the taxpayer’s right to a jury trial was preserved by the Seventh Amendment. In reaching this conclusion, however, the court cautioned that the right to a jury trial afforded by the Seventh Amendment “turns on the nature of the issue to be tried rather than the character of the overall action.” United States v. Anderson, 584 F.2d at 373, supra, citing Ross v. Bernhard, 396 U.S. 531, 538 (1970).
Here, the mandamus proceeding did not contain any issue of fact to be tried by a jury. This proceeding was held to determine whether Kouba filed a return from which his tax liability could be ascertained. This issue was for the court to decide as a matter of law. In addition, the determination of the validity of Kouba’s assertion of the Fifth Amendment on his tax form was for the court to decide as a matter of law.
In summary, because there was no factual issue for the jury, the petition for rehearing is denied.